tort law

Question 1

what is tort law?

Answer 1

Part of private law dealing with the
responsibility for wrongs (damages) caused to a
third party.

Question 2

liability

Answer 2

The legal responsibility for damages caused
to others.

Question 3

civil liability

Answer 3

• Accountability between individuals;
• Lower standard of proof.

Question 4

tort liability

Answer 4

• Imposed between members of a community.
• Compensation and prevention.

Question 5

tort

Answer 5

Wrong committed against
another that causes them
damage.
(unlawful act)

Question 6

causation

Answer 6

The relationship between
a tortious act and the
consequences it produces.

Question 7

damages

Answer 7

Harm or loss suffered by
the victim

Question 8

qualitative liability

Answer 8

For those responsible for
people or things that
might cause harm to
others.

Question 9

defences

Answer 9

Way in which the tortfeasor can negate liability or reduce the
owed damages (e.g.,necessity and consent).

Question 10

tortious act

Answer 10

‘As a tortious act is regarded a violation of someone else’s
right (entitlement) and an act or omission in violation of a duty
imposed by law or of what according to unwritten law has to be
regarded as proper social conduct.
- always as far as there was no justification for this behaviour.

Question 11

‘A person who commits a tortious act (unlawful act) against another person that can be attributed to him, must…

Answer 11

repair the damage that this
other person has suffered as a result thereof.’

Question 12

Infringement of a right

Answer 12

Direct, immediate, or intentional violation of
another’s subjective right. This includes:
- absolute property rights
- personality rights

Question 13

Act or omission in violation to what is
customary in society according to unwritten
law

Answer 13

• Most important type. Open formulation
  makes it applicable to a very wide scope of
  situations.
• ‘According to unwritten law’: no written
  rules, so we must rely on socially accepted
  standards of proper and careful conduct.

Question 14

tandard of care

Answer 14

Socially accepted standards of proper and
careful conduct

Question 15

Endangerment

Answer 15

the creation or continuation of
a dangerous situation

Question 16

Cellar Door (Kelderluik) criteria:

Answer 16

• Degree of probability with which the nonobservance of the required caution and prudence (of the victim) can be expected
• Likelihood of this harm occurring as a result of
  certain behavior
• Nature and extent of the damage feared
• Level of difficulty (for the perpetrator) in terms
  of cost, time and effort to take precautions

Question 17

Special circumstances that remove the unlawful
character of an otherwise unlawful act. It
includes:

Answer 17

• Force majeure (i.e., state of emergency)
• Self-defense
• Implementation of a legal requirement (i.e.,
  obtained permission to commit an unlawful
  act)
• Authorized official order (i.e., command
  from police officer)

Question 18

‘A tortious act can be attributed to…

Answer 18

the tortfeasor if it results
from his fault or from a cause for which he is accountable by
virtue of law or generally accepted principles (common
opinion)

Question 19

Fault

Answer 19

When someone commits a wrongful act
through inadvertence or carelessness
(negligence) or deliberately (intention).

Question 20

Generally accepted views

Answer 20

Used for cases where personal culpability is
lacking, while liability is nevertheless desirable
in connection with a reasonable allocation of
risk. Ex: foreign driver errs Dutch traffic rules
and causes accident.

Question 21

Specific legal provision

Answer 21

When the law distributes responsibility

Question 22

Restricts liability

Answer 22

No obligation to pay damages if the violated
rule does not serve to protect against the
damage suffered by the injured party.

Question 23

Rationale

Answer 23

Ensure that damages suffered by a third party
as an (indirect) consequence of the unlawful act
is not eligible for compensation.

Question 24

UK system

Answer 24

Elements of trespass to persons and
negligence

Question 25

Torts to land

Answer 25

Damage or interference to someone else’s land (e.g. trespass to land and private nuisance).

Question 26

Torts to goods

Answer 26

Damage or interference to someone else’s goods (e.g. trespass to goods and conversion)

Question 27

Economic Torts

Answer 27

E.g. intentional infliction of economic loss through unlawful means, passing off, and malicious falsehood.

Question 28

Personality Torts

Answer 28

E.g. defamation, harassment, and invasion of privacy.

Question 29

Abuse of power torts

Answer 29

E.g. misfeasance in public office, and malicious prosecution

Question 30

Statutory torts

Answer 30

Breach of a duty established by law, when the legislator intended that such breach would be actionable in tort

Question 31

Tort of trespass to persons,

Answer 31

Direct and intentional interference: - Battery - Assault - False imprisonment

Question 32

Tort of negligence

Answer 32

Indirect interference

Question 33

trespass to person

Answer 33

- Intentional and direct acts of interference - It is the act (and not the injury) which must be intentional - Actionable per se: claimant does not need to prove damage

Question 34

battery

Answer 34

- Protects bodily integrity and dignity - Any contact, no matter how trivial - Defendant must intend the act

Question 35

assault

Answer 35

- Requires no physical contact - Reasonable belief - Do not mix with criminal assault Which is the act of attacking someone

Question 36

False Imprisonment

Answer 36

- Does not require incarceration or force, A verbal command (stay and do not leave!) is enough. - No false imprisonment if: - reasonable means to escape - omission - reasonable restriction - consent - order of a court and legally justified - Victim does not need to be aware, The knowledge of the detention might be relevant to the assessment of damages

Question 37

Negligence

Answer 37

- Unintentional and indirect acts of interference. - Breach of a legal duty of care which results in damage to someone. - Three elements: (i) duty of care; (ii) breach by the defendant; (iii) damage to the claimant

Question 38

Duty of care Two key cases:

Answer 38

- Caparo v Dickman (1990) - Donoghue v Stevenson (1932)

Question 39

Caparo three-stage test

Answer 39

1: Harm is a reasonably foreseeable result of the defendant's conduct. 2: Proximity 3: It is fair, just and reasonable to impose this duty

Question 40

Omissions generally do not create duty of care, unless special relationship between claimant and defendant:

Answer 40

- Undertakings - Responsibility - Control

Question 41

two questions within the UK system

Answer 41

- How should the defendant have behaved, i.e. standard of care? - Did the defendant' s behaviour fall below the desired standard, i.e. breach?

Question 42

General liability

Answer 42

Based on personal fault of the wrongdoer, and defendant is liable only for their own acts.

Question 43

Qualitative or Strict liability

Answer 43

Based on a certain quality or relationship one has with another person or thing. Neither illegality nor fault is required.

Question 44

Employer’s liability for the fault of employees

Answer 44

- Benefit and burden - Best position - Responsibility - Incentive - Spread the loss - Easier compensation

Question 45

Benefit and burden

Answer 45

Who obtains the benefit, must bear the burden.

Question 46

Incentive

Answer 46

To make employer more selective with workforce and encouraging with safety measures

Question 47

Best position

Answer 47

To know or to find out the nature and cost of accidents and take insurance against these risks.

Question 48

Spread the loss

Answer 48

Passe extra cost to public (higher prices)

Question 49

Responsibility

Answer 49

For ensuring that the employees are properly trained.

Question 50

Easier compensation

Answer 50

Employer has more means to pay (e.g. liability insurance)

Question 51

dutch system

Answer 51

- Qualitative Liability - Civil Code (BW), sections 6.3.2 (persons and things) and 6.3.3 (products) - Employer's liability for employee's fault: art. 6:170 BW